HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE, 31 October 2016 & 19 January Opposed Matter

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1 1 KASIYAN JENA DERECK MUTIMBA MIRIAM MUTIMBA versus ESTATE LATE JOSIAH MUSINDO JENA ESTATE LATE CORNELIA JOHANNA JENA NHAMO MICHAEL JENA MUNICIPALITY OF CHEGUTU THE MASTER OF THE HIGH COURT REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE MUNANGATI-MANONGWA J HARARE, 31 October 2016 & 19 January 2017 Opposed Matter A. Masango, for the plaintiffs D. Kanokanga & A Taruvinga, for defendants MUNANGATI-MANONGWA J: The first, second third applicants are siblings,, together with two others who are not party to these proceedings hold title to st number 1027 Chegutu, Pfupajena Township measuring 205 square meters. In reality they have occupied l which is on st 1028 Chegutu, Pfupajena Township, for more than 20 years have always considered this l to be theirs. Meanwhile in October 2014 the third respondent acquired title to st number 1028 Chegutu Pfupajena Township (hereinafter referred to as the property ). This respondent then made a dem against the applicants to vacate the property. In response

2 2 the applicants applied inter alia for a declaratur that they are the rightful owners of the property. On the 31 st October 2016 I heard the matter granted the following order: That 1. The purported transfer of St 1028 Pfupajena Township into the 2 nd 3 rd respondents be is hereby set aside. 2. The inclusion of the property called St Number 1028 Pfupajena Township Chegutu as being party of the estate late Cornellia Johanna Jena is declared null void hereby set aside. 3. The 1 st, 2 nd third applicants are hereby declared the lawful owners of st number 1028 Pfupajena Township Chegutu. 4. The 4 th to 6 th respondents be are hereby ordered to prepare all documents necessary to enable the applicant to receive transfer or st 1028 Pfupajena Township Chegutu within 14 days of hing down of this order. 5. The 2 nd third respondents shall co operate by way of signing any documents necessary for the transfer registration of title to the applicants. 6. The supplementary first final distribution account in the Estate of the late Josiah Musindo Jena dated the 6 th of December 2013 be is hereby declared null void of no force effect. 7. The costs of this application shall be borne by the 2 nd third respondents jointly severally, the one paying the other to be absolved. I hereby furnish the reasons for arriving at that decision. The history of the case shows that one Josiah Musindo Jena the maternal grfather of the applicants died testate on the 13 th October He owned a number of immovable properties including the property in issue which is occupied by applicants described in the title deed they hold as st number 1027 Chegutu Pfupajena Township. In his Will, the late Josiah Musindo Jena bequeathed st 1027 to one Cynthia Jena. It is the applicants case that the st had been erroneously registered at the deeds office as st 1027 Chegutu Pfupajena Township. The applicants allege that, the said Cynthia Jena her children the applicants, took occupation of the property bequeathed to her which on the ground is the st in issue. Upon the winding up of her father s estate, Cynthia Jena took transfer of st 1027 under deed number

3 3 4979/95. Cynthia Jena died in 2002 left behind a will. In her will which is filed on record, she bequeathed property situate on st number 1028 Chegutu to all her five children comprising a butchery, bottle store a supermarket. The will specifically mentions st 1028, the property now in issue, although the title deed she held referred to st The applicants their siblings inherited from their mother as per her will obtained title in June 2006 with the property described in the title deed as st The applicants state that, upon realizing the mistake regarding the st number, they sought to rectify same with their legal practitioners Musunga Associates initiating the process to have the title deeds rectified to read st 1028 as early as July 2006 up until It seems the process was never finalised. It is applicant s case that it was only in 2014 when they received a letter to evict them from a butchery they inherited from their mother that they became aware that third respondent had obtained title to St The third respondent purported 23 years later to be a beneficiary to the estate of the late Josiah Musindo Jena their maternal grfather as per a supplementary first final liquidation account filed on the 13 th October It is applicants contention that the third respondent fraudulently obtained title to st 1028 when he realised that applicant s title wrongly referred to st 1027, although he was aware that applicants occupied l on st 1028 which is what they inherited. The third respondent s case is that the late Cynthia Jena took occupation of st 1028 Pfupajena Township thinking that it was St 1027 Pfupajena Township. He further alleges in his opposing affidavit that the applicants are not entitled to the relief that they seek because St 1027 St 1028 Pfupajena Township are two different sts with different measurements, are held under two different title deeds. He maintains that he lawfully took transfer in terms of provisions of paragraph 5 (d) of Musindo Jena s will as stated in the supplementary distribution account. I find the following to be common cause: that the late Josiah Musindo Jena owned the property which the applicants currently occupy, that the applicants initially occupied the property through their mother who took occupation after her father s death. The applicants are on St 1028 which they have occupied for over two decades. Josiah Musindo Jena, later his daughter subsequently applicants hold title to st 1027 whilst in reality they occupied

4 4 st The third respondent obtained title to st 1028 in 2014, 24 years after the late Josiah Musindo Jena passed on same was facilitated by a supplementary account. Mr Masango for the applicants argued that the third respondent had gotten title through fraud could therefore not legally acquire title to st 1028, the property in issue. He submitted that the process was a nullity as third respondent had taken advantage of a technicality of the mix up of st numbers yet he knew that the l allocated to the initial holder Josiah Musindo Jena by Chegutu Town Council remained st 1028, the property in issue. He submitted that the original owner never owned two adjacent sts that is, ; hence he could only bequeath that which he had. He sought the setting aside of the supplementary distribution account as it was fraudulent the reversal of the subsequent transfer to third respondent. Mr Kanokanga for the third respondent argued that the applicants should have resorted to the provisions of the Deceased Estate Act challenged the Master s decision on review. Therefore, applicants had adopted a wrong procedure as the supplementary distribution account was confirmed. He further argued that the applicants should have sought rectification of records through the deeds office. The court is convinced that applicants came to the correct forum there is nothing wrong with the procedure adopted. They are seeking a declaratur the setting aside of a transfer of title of st Such relief can only be granted by this court it being beyond the Master s purview. In any case they only realized that third respondent had taken title when they were to be evicted this was well beyond the exercise of the Master s powers. It is clear from papers filed of record that the Municipality of Chegutu confirmed to applicants legal practitioners upon an enquiry in 2006 that the late Josiah Musina Jena had been allocated st 1028 never When the applicants sought transfer from the late Cynthia Jena to themselves suggested that the Municipality had mixed up the st numbers the later denied that. The Municipality maintained that the st given to the late Josiah Jena Musindo was It even referred to the consent that was signed on the 17 th of May 2004 by their then official Dr N.C Zinyowera on behalf of Chegutu Municipality. For the avoidance of doubt the letter which is part of the record partly reads: In response to your minute dated 11/07/2006, please be informed that the Chegutu Municipality records have never at one time mixed up st numbers. The records reflect Jena s st as 1028 refer to the consent signed by the late Dr M.C Zinyohwera on behalf of Chegutu Municipality. However it is apparently clear it could have been typographical errors

5 5 as cited on your current document that is erroneously reading certain piece of l situate in District Salisbury instead of reading certain piece of l situated in the district of Chegutu The letter ends by advising Musunga Associates, applicant s lawyers to make amendments forward them to the deeds office for correction of the information. This information coupled by the fact that the third respondent has not placed before the court any evidence that the late Josiah Msindo Jena ever owned st 1027 on the ground, supports applicants contention that they inherited st 1028 despite reference to st 1027 in the title deeds. That Cynthia occupied st 1028 stayed with her children thereat thereafter left the businesses on the st to her children who continued to occupy same, makes it abundantly clear that it is this l that her father left to her. It is clear that there was wrong capture of information from the time title was initially transferred from Chegutu Municipality to the late Josiah Msindo Jena.It is also irrefutable that as early as 2006 process to rectify the anomaly had started long before the third respondent obtained title. On the 24 th February 2010 Chegutu Municipality had issued a rates clearance certificate pertaining to st 1028 to applicants to facilitate rectification of the title deed made in favour of applicants in 2006 when they got title from their late mother. That the third respondent is bereft of a feasible defence is apparent from the opposing affidavit itself. Despite far reaching allegations made in the applicant s founding affidavit third respondent s opposing affidavit hardly contains ample information apart from bare denials serve for two paragraphs that restate that the sts are different with different title deeds measurements. He claims lawful title, acknowledges the occupation by applicants nothing more. No explanation is rendered as to how the applicant s mother ultimately the applicants got to occupy that property, why third respondent was silent for more than two decades after Josiah Msindo died for 12 years after Cynthia s death. Further, the third respondent purports to inherit directly from the late Josiah Musina Jena in terms of paragraph 5(d) of that deceased s will denies that the property was ever into Cornelia Johana Jena s estate. Apart from his say so, the title deed he holds confirms this in the causa clause as it refers to clause 5(d). Of note are the following points:

6 6 a) Nowhere does Josiah Musindo Jena s will refer to st 1028 at all which the third respondent claims to inherit. That will refers to st 1027 which is awarded to Cynthia Jena. b) The third respondent is not stated as a beneficiary to the residue of the estate. c) Clause 5(d) provides for conditional inheritance stating that in the event of one or more of the beneficiaries not taking up their inheritance within 5 years of the deceased s demise such inheritance shall devolve upon the remaining beneficiaries in equal shares, share share alike. All the above noted points do not support the third respondent s purported inheritance. Mr. Kanokanga for the third applicant admitted that st 1028 is not mentioned in the will. On being quizzed by the court as to which beneficiary in the will had failed to take up their inheritance within the stipulated period for the third respondent to be able to take up same in terms of clause 5(d), Mr Kanokanga could not provide a substantive answer save to say he did not have the information. Due to the above observations which are factually supported, the third respondent has no basis to own St 1028 the property in issue. The totality of the evidence brings about the conclusion that at stake are rights to only one st it being st 1028 which the Chegutu Municipality allocated to Josiah Msindo Jena. It is this l that the late Josiah Musina Jena bequeathed to his daughter indeed the daughter bequeathed to her children. Accepting that the l that Josiah Musindo Jena was allocated by Chegutu Municipality is 1028, the proper in issue, means in essence there was nothing to award transfer to third respondent in 2014 because the potential rights to the st already belonged to applicants. Ownership of st 1027 passed to applicants due to an error most probably arising out of a typographical error regrettably was carried over hence their attempt to rectify. Errors are bound to happen in registration of title hence provision by the legislature for rectification. Section 6 of the Deeds Registries Act [Chapter 20:05] provides for rectification of errors pertaining to among other things property description gives room for rectification in several deeds if the error so appears in them, This seems to be the route that applicants were pursuing as shown by correspondence an affidavit by Mr. Musunga which is on record.

7 7 It was held in Dondo N.O. v Muganhiri & Others 1 that transfer effected as a result of misrepresentation of facts is a nullity does not receive recognition at law. Equally, ownership of l or title thereto cannot be sustained in light of a fraudulent act (see Agro Chem Dealers (Pvt) Ltd v Gomo & Ors). 2 The third respondent capitalized on a technicality unethically if not fraudulently obtained title to st 1028 when he realized that st 1028 was still held by Chegutu Municipality was not in applicants names. The award the transfer of the property was therefore a nullity from the onset. The very fact that the fifth respondent confirmed a supplementary distribution account is neither here nor there as there was nothing to pass to the third respondent, the acts being a nullity, the outcome remains a nullity. Title is the sum total of real rights in l but same has to be legally obtained. The third respondent holds a title deed from which no real rights flow as he never had any potential real rights in the l to assume when he obtained title but did so fraudulently. It is due to the aforegoing reasons that I granted an order in favour of the applicants. Musunga & Associates, applicant s legal practitioners Kanokanga & Partners, third respondent s legal practitioners 1 HH77/15 2 HC 3342/08